fessional men; artists, merchants, mechanics, agriculturists, laborers,—in fine, all non-combatants or persons who take no part in the war, and make no resistance to arms. This exemption continues only so long as they refrain from hostilities or inciting hostilities, pay military contributions and submit to military authority.

Passive enemies, sick and wounded, leaving armed place.

751. Passive enemies, and sick and wounded, may always be sent out of an armed place; and in taking their departure, they, with their attendants, must be respected and protected by the belligerents.

See Convention of Geneva, Art. VI., ¶ 5.

Disarming places.

752. The passive enemies in a particular place may be disarmed and restrained, when necessary for the security or success of the belligerent force.

Halleck, Intern. Law & Laws of War, p. 428, § 5.

Persons communicating with the enemy.

753. Persons who, within the military lines, make any communication with the enemy, direct or indirect, intended to subserve the purpose of the war, may be expelled from the lines,' or may be treated as active enemies.

1 Lieber, (Instructions, ¶ 98,) says, that all unauthorized or secret communications with the enemy are treasonable.

The same author, (§§ 90-91,) says of war traitors, (persons in a place or district under martial law, who, unauthorized by the military commander, give information of any kind to the enemy or hold intercourse with him,) that they are always severely punished. If their offense consist in betraying to the enemy anything concerning the condition, safety, operations or plans of the troops holding or occupying the place or district, their punishment is death.

If the citizen or subject of a country or place invaded or conquered, give information to his own government, from which he is separated by the hostile army, or to the army of his government, he is a war traitor; and death is the penalty of his offense. This rule seems too harsh. It is sufficient to subject them to the treatment of active enemies, except where they come within the category of spies.

The rules respecting spies, war traitors and war rebels, are applied without distinction of sex. Lieber's Instructions, ¶ 102.

CHAPTER

LIX.

THE INSTRUMENTS AND MODES OF HOSTILITIES.

It has not been thought best, in drafting these provisions, to attempt the statement of a theoretic distinction between those forms of force which are and those which are not unlawful, but only to enumerate those which it seems practically important to prohibit.

Concealed modes of extensive destruction are allowable; as, torpedoes planted to blow up ships, or strewed over the ground before an advancing enemy, and mines; hot shell are permissible, and bombshells to set fire to ships, camps or forts; and it is thought that steam or boiling water may lawfully be thrown upon boarders, by a ship on the defensive.

The employment of assassins; the introduction of infectious or contagious diseases, the poisoning of springs, the use of poisoned weapons or of chemical compounds which may maim or torture the enemy, or of any material which owes its efficacy to a distinct quality of producing pain, or of causing or increasing the chances of death or disability, and which cannot be remedied by the usual medical and surgical applications for forcible injuries, or averted by retreat or surrender, are unlawful. Dana's Wheaton, Elem. of Intern. Law, § 343, note 166.

ARTICLE 754. Unlawful weapons.

755. Private gratification forbidden.

756. Unlawful hostilities.

757. Notice of bombardment.

758. Retaliation, when allowed.

759. Mode of retaliation not to be barbarous.

760. Passive or disabled enemies and prisoners.
761. Bribery and intrigue.

762. Good faith in keeping engagements.

763. 66

Stratagems" defined.

764. Unlawful stratagems.

765. Lawful stratagems.

766. Piratical use of false colors, &c.

767. "Spies" defined.

768. Employment and punishment of spies.

769. Guides.

770. Punishment of guides.

771. Solicitation of desertion unlawful.

772. Enlistment of deserters no protection from

punishment.

Unlawful weapons.

754. The following are unlawful weapons:

1. Those which are poisoned ;'

2. Those which contain explosive material, whether in musket balls or in any other missile intended especially for the person ;*

3. Those which contain chemical compounds intended to torture; and,

4. All other weapons intended to cause needless suffering, or wounds unnecessarily difficult to heal.'

1 Klüber, Droit des Gens, § 244; Bluntschli, Droit Intern. Codifié, § 557.

2 The International Military Commission, in a session at St. Petersburg, agreed to prohibit the use in time of war of all explosive projectiles weighing less than four hundred grammes. Army and Navy Journal, New York, Nov. 28, 1868.

3 Fioré, Nouveau Droit Intern., v. 2, p. 279.

Of this class are: Boulets à chaines, which, according to Bluntschli, (Droit Intern. Codifié, § 560,) are forbidden only on land.

Boulets à bras.

Boulets ramés, mentioned by Bluntschli, § 560, note.

Balles crénelées.

Le petit plomb.

Mitraille, (de faire charger le canon avec des morceaux de fer ou de verre, ou avec des clou.) (Mitraille proprement dite.)

According to Klüber, mitraille in the ordinary acceptation of the term, and, even in case of necessity, of pieces of lead, not perfectly round, are allowable. But according to Bluntschli, § 560, they are forbidden at sea. Verre pilé.

De faire charger le fusils à deux balles; à deux mortiés de balles; ou fondues avec de morceaux de verre ou de chaux.

Boulets rouges ou de couronnes foudroyantes; cercles poissés.

These are prohibited by treaty in some maritime wars. Klüber, § 244,

note a.

Fleches barbelés. Bluntschli, Droit Intern. Cod., § 558.

Klüber, (Droit des Gens, § 244,) says, that the customs of war condemn the use of chain shot and bar shot, shooting bits of iron, brass, nails, &c. ; the loading of muskets with two balls, with jagged balls, or with balls mixed with glass or lime.

Special treaties have prohibited as between the parties the use of chain, bar, and hot shot, as well as of pitch rings, (cercles poissés.)

Grape, cannister and shrapnel shell, or spherical case shot are used in the United States navy. Ordinance Instructions of 1866, p. 76, §§ 271275.

Private gratification forbidden.

755. All transactions for individual gain at the expense of the enemy,' all insults to the religion, honor, language or manners of the enemy; all assassination" or other acts of private revenge, or connivance at such acts, and all violence for private purposes, are unlawful.

Lieber's Instructions for the Government of Armies of the United States, 11.

1 Such as extortion of money for private use. Lieber's Political Ethics bk. VII., § 24.

2 Bluntschli, Droit Intern. Codifié, § 577.

3 Klüber, Droit des Gens, § 244; Bluntschli, Droit Intern. Codifié, § 561 ; Lieber's Instructions, ¶ 148; Dana's Wheaton, Elem. of Intern. Law, § 343,

note 166.

4 Such as the gratification of lust. Lieber's Political Ethics, bk. VII.,

$ 24.

Unlawful hostilities.

756. The following acts are unlawful,' except when inflicted in retaliation, within the limits prescribed by article 758:

1. Offering reward for the death of any person ;*
2. Proclaiming any person an outlaw;"

3. Incendiarism, except of military structures;"
4. Bombardment of defenseless places ;"

5. All wanton injuries to property, not subject to hostilities according to the provisions of this Book ;

6. All unnecessary or avoidable injury to the person of others than active enemies," or to property mentioned in article 840, even when contained in fortified places besieged or bombarded ;'

7. Refusing quarter to those who surrender and lay down their arms," or killing or wounding a defenceless' or unresisting" enemy; except in the cases where the refusal of quarter is necessary by way of retaliation, allowed by article 758, or when the punishment of death is ordered by a competent tribunal for an offense committed by such enemy.

8. Mutilation or other wanton injuries of the person of a prisoner;

9. Firing on outposts," sentinels or pickets, except under express orders to drive them in:

10. The use of poison" or other means, to vitiate food, drink or atmosphere, or to spread contagious or infectious disease; and,

11. Starving" the enemy by cutting off supplies of food or water.

1 It is lawful, however, to take advantage of the disorder or weakness caused by such acts, when committed by third parties. Bluntschli, Droit Intern. Codifié, § 563, note.

2 Bluntschli, Droit Intern. Codifié, § 562; Lieber's Instructions for the Government of Armies of United States, ¶ 148.

Klüber, (Droit des Gens, § 244,) says, putting a price on the head of the sovereign or general-in-chief is forbidden.

3 The law of war does not allow proclaiming either an individual belonging to the hostile army, or a citizen, or a subject of the hostile government, an outlaw, who may be slain without trial by any captor. Lieber's Instructions, ¶ 148.

4 Bluntschli, Droit Intern. Codifié, § 563, note.

5 This, it seems, should be prohibited, though it has been regarded as allowable.

Such are the violation of women, the despoiling of tombs, the profaning of places of worship, &c. Klüber, Droit des Gens, 244.

Lieber's Instructions, 35.

8 By the present rules of international law, says Halleck, (Int. Law & Laws of War, p. 429, § 6, citing many authorities,) quarter can be refused the enemy, only, in cases where those asking it have forfeited their lives by some crime against the conqueror, under the laws and usages of war. But Lieber, (Instructions, ¶ 60,) says, that a commander is permitted to direct his troops to give no quarter, in great straits, when his own salvation makes it impossible for him to incumber himself with prisoners. See also Bluntschli, Droit Intern. Codifié, § 580.

According to the same authorities, troops known to give no quarter receive none; (Bluntschli, § 581; Lieber, ¶ 62 ;) and if the character of a prisoner, as a member of such troops, is unknown at the time of capture, he may be put to death, if it be discovered within three days after the battle in which quarter was given under such misapprehension. Lieber,

66.

This Article would establish a more humane rule.

9 Bluntschli, Droit Intern. Codifié, § 561, and note.

10 Halleck, Intern. Law & Laws of War, p. 426, § 2; p. 429, § 6; Lieber's Instructions, 71; Bluntschli, Droit Intern. Codifié, § 385.